Cherokee Nation of Oklahoma v. Norton, 98-CV-903-H.

• Decision Date: 20 December 2002
• Docket Number: No. 98-CV-903-H.,98-CV-903-H.
• Parties: CHEROKEE NATION OF OKLAHOMA, on behalf of all its members, Plaintiff, v. Gale NORTON, in her official capacity as Secretary of Interior of the United States Department of Interior; Neal McCaleb, in his capacity as Assistant Secretary of the Department of the Interior; and the Delaware Tribe of Indians, as an indispensable party pursuant to Federal Rule of Civil Procedure 19, Defendants.
• Court: U.S. District Court — Northern District of Oklahoma

241 F.Supp.2d 1368

CHEROKEE NATION OF OKLAHOMA, on behalf of all its members, Plaintiff, v. Gale NORTON, in her official capacity as Secretary of Interior of the United States Department of Interior; Neal McCaleb, in his capacity as Assistant Secretary of the Department of the Interior; and the Delaware Tribe of Indians, as an indispensable party pursuant to Federal Rule of Civil Procedure 19, Defendants.

No. 98-CV-903-H.

United States District Court, N.D. Oklahoma.

December 20, 2002.

Julian Kroh Fite, David Alan Mullon, Jr., Janice Walters Purcell, Cherokee Nation of Oklahoma Division of Law & Justice, Tahlequah, OK, F. Browning Pipestem, Dena LaMoyne Silliman, F. Browning Pipestem & Associates, Norman, OK, James Hamilton, William J. Mertens, Wilson K. Pipestem, Swidler & Berlin Chartered, Lloyd B. Miller, Sonosky Chambers Sachse Miller & Munson, Anchorage, AK, for Plaintiff.

Phil Pinnell, Loretta F. Radford, Tulsa, OK, Rollin Anthony Rogers, US Department of Justice Environment & Natural Resources Washington, DC, Barbara Coen, US Dept of Interior Division of Indian Affairs, Washington, DC, for Defendant.

ORDER

HOLMES, District Judge.

This matter comes before the court on an appeal by Plaintiff Cherokee Nation of Oklahoma (the "Cherokee") of a decision by the Secretary of Interior (the "Secretary") in 1996 to withdraw a letter issued by an official of the Department of Interior (the "Department") in 1979 (the "1979 letter"). The effect of such withdrawal was to re-establish certain dealings between the United States and the Delaware Tribe of Indians (the "Delaware").

I

On July 23, 2002, this Court entered an order sustaining the Secretary's decision to retract the 1979 letter (the "Order"). The basis for this decision is set forth fully in the Order, which the Court hereby incorporates herein by reference. In sustaining the Secretary's decision to retract the 1979 letter, the Court also sustained the Secretary's decision to return to the status quo ante prior to the issuance of the 1979 letter. However, the Court raised the question whether the Secretary's final decision on September 27, 1996, which included a statement that the Delaware is a tribal entity recognized and eligible for funding, went beyond a mere return to the status quo ante and actually announced a new substantive policy. In the Order, the Court explained this as follows:

At the outset, the Court notes that the action by the Secretary at issue here may involve more than the mere retraction of the 1979 letter. Specifically, the notice dated September 27, 1996, provides in applicable part as follows:

... the Assistant Secretary hereby retracts the letter of May 24, 1979. The notice of proposed decision, 61FR33534, is hereby made final. Notice is hereby given that the Delaware Tribe of Indians is a tribal entity recognized and eligible for funding and services from the Bureau of Indian Affairs by virtue of its status as an Indian tribe.

Thus, the Assistant Secretary first retracted the 1979 letter and, second, declared the Delaware Tribe a "recognized" tribal entity, "eligible for funding and services from the Bureau ... by virtue of its status as an Indian tribe." Clearly, the former of these actions retracts the 1979 letter and restores the relationship between the Department and the Delaware to the status quo ante. The latter of these actions, however, potentially may constitute a declaration of new substantive policy. The Court will address each of these actions in turn.

* * * * * *

As noted previously, the Secretary's notice issued September 27, 1996, arguably encompasses two decisions: first, a decision to retract the 1979 letter and, second, a decision to declare a new policy with respect to the status of the Delaware Tribe and relations between the Delaware Tribe and the United States. As stated above, the Court hereby sustains the Secretary's decision to retract the 1979 letter and thereby to restore the status quo ante. The question becomes whether the Secretary's notice on September 27, 1996, also effected a substantive change in the status quo ante and, if so, whether that change is justified as a matter of law. (07/23/02 Order at 13, 18-19.)

Based on the above-described concern with respect to the impact of the retraction of the 1979 letter, the Court ordered additional briefing on the question of whether the final decision of the Secretary, which included the statement regarding the recognition of the Delawares as a tribal entity eligible for funding, announced a new substantive policy.¹

Thus, the remaining question before the Court is whether the Secretary correctly determined that the status quo ante, prior to the issuance of the 1979 letter, was as follows: "[T]he Delaware Tribe of Indians is a tribal entity recognized and eligible for funding and services from the Bureau of Indian Affairs by virtue of its status as an Indian Tribe." If so, the Secretary's final decision in September of 1996 did not constitute a declaration of new policy and therefore did not effect a substantive change in the status quo ante. The Delaware and the Secretary argue that the Secretary's determination of the status quo ante prior to the issuance of the 1979 letter should be upheld. For the reasons set forth below, the Court agrees.

II

As noted above, the issue currently before the Court is the Secretary's determination that, pursuant to a return to the status quo ante, "the Delaware Tribe of Indians is a tribal entity recognized and eligible for funding and services." The scope of a district court's review of an administrative agency decision is governed by section 706 of the Administrative Procedure Act ("APA"), 5 U.S.C. § 701, et seq. Section 706 of the APA provides that a reviewing court shall "hold unlawful and set aside agency action, findings, and conclusions found to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A). "Under the APA, we review agency action de novo to determine whether it was `arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.'" City of Albuquerque v. Browner, 97 F.3d 415, 424 (10th Cir.1996) (quoting section 706(2)(A) of the APA). The "essential function" of judicial review of an agency action is "a determination of (1) whether the agency acted within the scope of its authority, (2) whether the agency complied with prescribed procedures, and (3) whether the action is otherwise arbitrary, capricious or an abuse of discretion." Olenhouse v. Commodity Credit Corp., 42 F.3d 1560, 1574 (10th Cir.1994). Under the arbitrary and capricious standard, the objective of the Court's inquiry is to determine "whether there has been a clear error of judgment." Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971).

III

At the outset, the Court finds that the Secretary is entitled to great deference in her determination that, prior to the issuance of the 1979 letter, the Delaware was a federally recognized sovereign entity entitled to direct government relations with the United States. The authorities supporting such deference were discussed at length in the Order and will not be rehearsed here. The Court finds that other authorities also compel the Court to resolve any question in favor of the Secretary's determination in this case.

It is well settled that issues involving government-to-government relations with Indian tribes are political questions inappropriate for judicial decision. As stated by the Supreme Court in United States v. Holliday, 70 U.S. (3 Wall.) 407, 419, 18 L.Ed. 182 (1865), "It is the rule of this court to follow the action of the executive and other political departments of the government, whose more special duty it is to determine such affairs. If by them those Indians are recognized as a tribe, this court must do the same." In United States v. Sandoval, 231 U.S. 28, 46-47, 34 S.Ct. 1, 58 L.Ed. 107 (1913), the Supreme Court limited this judicial deference, but only in situations in which the government acted arbitrarily in declaring a community or body of people an Indian tribe.

Similarly, the Court in Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962), noted that cases questioning the status of Indian tribes are "representative" of political controversies sometimes inappropriate for judicial resolution, but that courts could strike down any "heedless extension" of that label. Id. at 216-17, 82 S.Ct. 691. As stated in Felix Cohen's Handbook of Federal Indian Law, "[T]he courts have said that it is up to Congress and the Executive to determine whether a tribe exists." Felix Cohen, Handbook of Federal Indian Law, at 268 (1942). See also Western Shoshone Business Council v. Babbitt, 1 F.3d 1052, 1057 (10th Cir. 1993) ("The judiciary has historically deferred to executive and legislative determinations of tribal recognition."); Cherokee Nation v. Babbitt, 117 F.3d 1489, 1496 (D.C.Cir.1997) ("Whether a group constitutes a `tribe' is a matter that is ordinarily committed to the discretion of Congress and the Executive Branch, and courts will defer to their judgment."). This line of authority showing deference to actions of the executive with respect to Indian tribes directly applies to the Secretary's 1996 reconsideration, after notice and comment, of the Secretary's 1979 position in light of the historical government-to-government relationship between the United States and the Delaware until 1979.

IV

The Court finds not only that the Secretary's determination is entitled to deference, but also that it has ample support in the law. The Cherokee rely heavily on Cherokee Nation v. Journey cake, 155 U.S. 196, 15 S.Ct. 55, 39 L.Ed. 120 (1894), and Delatoare Indians v. Cherokee Nation, 193 U.S. 127, 24 S.Ct. 342, 48 L.Ed. 646 (1904). Citing these cases, the Cherokee assert that, under the 1867 Agreement, the Delaware elected to proceed in accordance...